Im­i­ta­tion game

It’s a rum thing. Lit­er­ally. Prob­a­bly far more peo­ple will have a rum and Coke tonight some­where in the At­lantic prov­inces than will ever read the lengthy Fed­eral Court of Canada case Di­a­geo Canada vs. Heaven Hill Dis­til­leries Inc.

Af­ter all, the court case runs some 24,129 words, and cen­tres on some­thing that some might call an iconic im­age: the pic­ture of Cap­tain Mor­gan on a rum bot­tle. (If you feel so in­clined, you can read it here — http://bit.ly/2zVtwRj )

But you don’t have to — luck­ily, we read it for you. In a nut­shell, the trade­mark case comes down to two dif­fer­ent rums: Cap­tain Mor­gan, whose im­age of the pi­rate cap­tain with one foot up on a bar­rel you’d prob­a­bly rec­og­nize, and Heaven Hill’s Ad­mi­ral Nel­son brand rum, with its own pi­rate-like fig­ure.

Make no mis­take, this is big busi­ness, and the law­suit was a window on that cor­po­rate world. Di­a­geo ar­gues it has used its Cap­tain Mor­gan like­ness, “on posters, tent cards, ban­ners and other pro­mo­tional items at bars and restau­rants, by ex­ten­sive print, tele­vi­sion and in­ter­net ad­ver­tis­ing, by in­ter­ac­tive en­gage­ment with ‘The Cap­tain’ at bars, restau­rants and ma­jor events such as the Cal­gary Stam­pede and the Tall Ships, by spon­sor­ships with Hockey Night in Canada, the Na­tional Hockey League and var­i­ous NHL teams, and by bill­board ad­ver­tis­ing and out­door sig­nage. In the last 15 years or so … Di­a­geo has spent about $150 mil­lion for pro­mot­ing, mar­ket­ing, and ad­ver­tis­ing its Cap­tain Mor­gan rum prod­ucts, and within the last year roughly $17 mil­lion was ex­pended.”

Com­pany of­fi­cials tes­ti­fied that 200 mil­lion bot­tles of Cap­tain Mor­gan have sold in this coun­try since 1994, with a sales value of close to $5 bil­lion. You can un­der­stand why they’d be pro­tec­tive.

Di­a­geo ac­tu­ally found con­sumers who were con­fused be­tween the Ad­mi­ral and the Cap­tain, es­pe­cially be­cause the ad­mi­ral ap­par­ently wasn’t even de­picted as he ap­peared once pro­moted to ad­mi­ral: “Heaven Hill’s de­pic­tion of Ad­mi­ral Nel­son on its la­bel as a young pi­rate-like char­ac­ter with an eye patch is so dis­sim­i­lar to the ac­tual his­tor­i­cal char­ac­ter — who is older with grey hair, dif­fer­ent at­tire, wear­ing a hat, and hav­ing lost an arm — that this fur­ther re­flects Heaven Hill’s true in­ten­tions of trad­ing upon Di­a­geo’s good­will and con­fus­ing con­sumers.”

(For word nerds, the fact that Cap­tain Mor­gan’s le­gal team was Toronto’s Smart & Big­gar was just a bit more of the fun.)

In the Navy, of course, an ad­mi­ral eas­ily out­ranks a cap­tain.

In the courts, not so much.

The ad­mi­ral went down to de­feat, with the judge grant­ing an in­junc­tion that went as far as to or­der all of the “bot­tles … pack­ages, la­bels and ad­ver­tis­ing ma­te­rial in Canada” that bear the of­fend­ing mark be de­stroyed.